Marriage of Leuzinger

Filed 12/23/09 Marriage of Leuzinger CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, H. Don Christian, Commissioner. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Mark A. Leuzinger, in pro. per., for Appellant.

Heidi Romeo & Associates and Heidi H. Romeofor Respondent.

INTRODUCTION

Respondent and appellant Mark A. Leuzinger (Mark)[1]appeals a judgment on reserved issues entered by the trial court in marital dissolution proceedings between Mark and his former wife, Gail Stark-Leuzinger (Gail). On appeal, Mark argues that the trial court failed to divide the parties community property furnishings and appliances, mischaracterized certain other assets and liabilities, and failed to divide the parties community property estate equally, as required by Family Code section 2550.[2] We conclude that Marks contention that the trial court failed to divide the furnishings and appliances has merit, but that Marks remedy is a motion or order to show cause in the trial court pursuant to section 2556. Mark forfeited his other contentions by failing to follow the applicable rules of appellate procedure. Furthermore, even if we were to address those contentions, Mark has failed to demonstrate reversible error. We deny Gails motion for sanctions.

BACKGROUND

Mark and Gail were married on August 25, 1996 and separated on August 16, 2002. There were no children of the marriage. Mark was a management, software and systems consultant who sometimes operated under the business name Mark Nine Systems, Inc. Gail was a schoolteacher. The marriage was dissolved by a judgment as to status only on March 19, 2004. Trial on the reserved issues was had on 19 days over a period of nearly two years, from December 2004 to October 2006. The trial court entered judgment on the reserved issues on January 24, 2008. Mark timely appealed.

DISCUSSION

A. General Principles and Standard of Review

Absent an agreement by the parties, section 2550 imposes on the trial court in martial dissolution proceedings a mandatory, nondelegable duty to value and divide equally the parties community property estate.[3] (See 2550; In re Marriage of Cream (1993) 13 Cal.App.4th 81, 89; In re Marriage of Knickerbocker (1974) 43 Cal.App.3d 1039, 1044; see also In re Marriage of Walrath (1998) 17 Cal.4th 907, 924.) To do so, the trial court must first determine which property owned by the parties is part of the community property estatethat is, the trial court must characterize the property. Characterization of property, for the purpose of community property law, refers to the process of classifying property as separate, community, or quasi-community. Characterization must take place in order to determine the rights and liabilities of the parties with respect to a particular asset or obligation and is an integral part of the division of property on marital dissolution. (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 291; see generally, Hogoboom, et al., California Practice Guide: Family Law (The Rutter Group 2009) 8:30, pp. 8-8 to 8-9 (rev. #1 2009) (Family Law).)

In general, a spouse maintains as his or her separate property all property acquired prior to marriage; property acquired during the marriage that can be traced to a separate property source; and property acquired during the marriage by gift, bequest, devise or descent. ( 770, subd. (a); see In re Marriage of Weaver (1990) 224 Cal.App.3d 478, 484.) Other property acquired by a married person during the marriage presumptively is community property. ( 760; In re Marriage of Bonds (2000) 24 Cal.4th 1, 12; see generally Family Law, supra, 8:77, p. 8-19.) The party claiming that property acquired during the marriage is his or her separate property has the burden of overcoming this presumption by a preponderance of the evidence. (In re Marriage of Ettefagh (2007) 150 Cal.App.4th 1578, 1585, 1591.)

The trial court has broad discretion to determine the manner in which community property is divided, although absent an agreement, it must be divided equally. ( 2550; In re Marriage of Brown (1976) 15 Cal.3d 838, 848, fn. 10.) Accordingly, we review the trial courts judgment dividing marital property for an abuse of discretion. (In re Marriage of Dellaria & Blickman-Dellaria (2009) 172 Cal.App.4th 196, 201 (Dellaria); In re Marriage of Quay (1993) 18 Cal.App.4th 961, 966.) We review the trial courts factual findings regarding the character and value of the parties property under the substantial evidence standard. (Dellaria, supra, 172 Cal.App.4th at p. 201; In re Marriage of Ettefagh, supra, 150 Cal.App.4th at p. 1584.) The interpretation of a statute presents a question of law that we review de novo. (Dellaria, supra, 172 Cal.App.4th at p. 201; In re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 230.)

B. Furnishings and Appliances

Mark argues that the trial court failed to divide the parties furnishings and appliances, in violation of section 2550.[4] Although we agree that the trial court should have divided those assets, the error does not require reversal of the judgment now on appeal because Marks remedy is provided by section 2556.

The division of the parties community property furnishings and appliances was an issue before the trial court. It appears that, at some point prior to trial, the trial court instructed the parties not to present evidence regarding that issue. During trial, on January 25, 2005, the trial court told the parties that, if the parties were unable to reach agreement on dividing the furnishings and appliances, the trial court would refer that issue to a private dispute resolution center where the parties could sit down with an attorney and go through that process. On September 29, 2005, the trial court entered a minute order referring the parties to Claremont Resolution Center to mediate the issue. The trial court orally reiterated that order on October 10, 2006. There is no indication in the record that a mediation occurred, or if it occurred, that it resolved the issues relating to the furnishings and appliances.[5] Neither the trial courts statement of decision nor the judgment purports to characterize, value or divide the furnishings and appliances. Mark objected to the trial courts failure to divide the furnishings and appliances prior to entry of judgment in his memorandum of points and authorities in opposition to entry of judgment.

Because the furnishings and appliances were apparently assets of the community estate before the trial court, the trial court was obligated to characterize, value and divide them when it divided the remainder of the community estate. [T]he trial court, in its judgment of dissolution or at a later time if it expressly reserves jurisdiction to do so, must value and divide the community estate of the parties equally. [Citation.] This task constitutes a nondelegable judicial function [citation] which must be based upon substantial evidence [citation]. (In re Marriage of Andresen (1994) 28 Cal.App.4th 873, 880.) Without a stipulation of the parties, the trial court cannot abdicate its statutory responsibility to value and divide the community estate. (In re Marriage of Cream, supra, 13 Cal.App.4th at p. 89.) Thus, no matter the scope of the impasse between the parties or the complexity of the dispute, mediators, arbitrators, or other nonjudicial alternative dispute resolution methods (except pursuant to Family C. 2554 . . .) may not be used to value and divide the community estate unless both parties expressly agree to it. (11 Witkin, Summary of Cal. Law (10th ed. 2005) Commuity Property, 213, p. 807; see also In re Marriage of Cream, supra, 13 Cal.App.4th at pp. 90-91.)

Gail argues that Mark failed to raise the issue in a timely fashion in the trial court. On October 10, 2006, the trial court told counsel to notify it by October 30, 2006 if they needed assistance resolving the issue. There is no indication in the record that either party so notified the trial court. Although the parties failure to obey the trial courts order might have exposed them to some monetary or evidentiary sanction, it did not relieve the trial court of its mandatory, nondelegable duty to divide the community property estate. Mark objected to the proposed judgment on this ground prior to entry of judgment, and the trial court should have corrected its omission then.

That omission, however, does not require reversal of the judgment now on appeal. The judgment before us does not improperly characterize, value or divide the furnishings or appliancesrather, it omits them entirely. A partys remedy in such cases is to make a motion or bring an order to show cause in the trial court pursuant to section 2556. Section 2556 authorizes a party in a marital dissolution action to file a postjudgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. Pursuant to section 2556, even where there is an ostensible, final and complete judgment the parties may nonetheless litigate issues of property rights that are not expressly adjudicated by that judgment. (In re Marriage of Dunmore (1996) 45 Cal.App.4th 1372, 1379, fn. 6.) Section 2556 permits relief whether or not the court reserved jurisdiction, and even if the [omitted] item was mentioned in the pleadings or the judgment, so long as it was not dealt with as part of the adjudication of the parties marital property rights therein. (Family Law, supra, 8:1520, pp. 8-365 to 8-366; see also Huddleson v. Huddleson (1986) 187 Cal.App.3d 1564, 1569; Brunson v. Brunson (1985) 168 Cal.App.3d 786, 788 [mention of omitted asset in judgment is not an adjudication of property rights].) It would make little sense to reverse a judgment because it omits some assets, when there is an equivalent and more appropriate avenue of relief available to Mark in the trial court. (See Family Law, supra, 16:140, p. 16-40.) Accordingly, although we affirm the judgment, we do so without prejudice to Marks rights under section 2556 with respect to the omitted property.

C. Forfeiture of Other Issues

Gail argues that Mark has forfeited his right to appellate review of the other issues he raised in his opening brief because he failed to cite adequately and accurately to the record on appeal; failed to discuss all of the material evidenceincluding the evidence unfavorable to his positionin challenging the trial courts findings; and failed to cite and argue pertinent legal authority. We agree.

The most fundamental rule of appellate review is that an appealed judgment or order is presumed to be correct. (Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) 8:15, p. 8-5 (rev. # 1, 2009) (Civil Appeals).) A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. [Citations.] (Denham v. Superior Court (1970) 2 Cal .3d 557, 564.)

A corollary to this rule is that, to be successful on appeal, an appellant must be able to affirmatively demonstrate error on the record before the court. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822, italics added.) This means that the appellant bears the burden (1) to provide an adequate record for the appellate court to evaluate a claim of error (see, e.g., Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Ballard v. Uribe (1986) 41 Cal.3d 564, 574); (2) to direct the appellate court to specific evidence, pleadings or proceedings in the record to support the claim of error(see, e.g., Cal. Rules of Court, rule 8.204(a)(1)(C);[6]In re Marriage of Rothrock, supra, 159 Cal.App.4th at p. 230); (3) if possible, to cite to legal authority establishing or discussing pertinent points of law (see, e.g., Rule 8.204(a)(1)(B); In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164); and (4) to provide the appellate court with factual and legal argument to demonstrate thatbased on the record and authorities citedthe trial court committed reversible error (see, e.g., Rule 8.204(a)(1)(C); In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278; see generally Civil Appeals, supra, 8:17-8:19, pp. 8-5 to 8-7.)

Marks presentation on this appeal failed on these points. As to the record, Mark elected to proceed by appendix pursuant to rule 8.124. Rule 8.124 requires that an appellants appendix contain any item listed in rule 8.122(b)(3) that is necessary for proper consideration of the issues . . . . (Italics added.) Such items may include [a]ny . . . document filed or lodged in the case in superior court and [a]ny exhibit admitted in evidence, refused, or lodged[.] (Rule 8.122(b)(3)(A), (B).)

Other than the issue discussed in Part B, ante,the issues raised by Mark concern primarily the sufficiency of the evidence supporting the trial courts findings as to the character and value of the community property estate. This case consumed 19 trial days over nearly two years, during which the trial court admitted nearly 30 exhibits into evidence. Marks appendix contains none of the exhibits.[7] Marks appendix also contains none of the pleadings or other documents that Gail submitted to the trial court (except for a single income and expense declaration filed in August 2006), whereas Mark included in his appendix his own trial brief, his own written closing argument, and other pleadings and documents that he filed in the trial court. Mark even omitted from his appendix the trial courts written statement of decision, which sets forth its findings and the reasons for its rulings. Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]. [Citation.] (Hernandez v. CaliforniaHospitalMedicalCenter (2000) 78 Cal.App.4th 498, 502; accord, Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46.)

Marks appendix also does not comply with rules 8.124(d)(1) and 8.144(a)(1)(D), requiring that each page of the appendix be separately numbered. For example, Mark failed separately to number more than two dozen trial court minute orders covering the time period from December 17, 2004 to January 15, 2008, or the more than 20 pages of exhibits that, apparently, were attached to his trial brief.

Furthermore, in general, documents that were not before the trial court cannot be included in the record on appeal. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1; Truong v. Nguyen (2007) 156 Cal.App.4th 865, 882; see also Rule 8.124(b)(2).) In their briefs, the parties may rely only on matters that appear in the record or are subject to judicial notice. (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632; see Rule 8.204(a)(2)(C); Civil Appeals, supra, 8:171-8:174.) Contrary to these principles, Mark relies upon and has appended to his opening brief several so-called exhibits that, it would appear, were neither offered nor received into evidence during trial and which are not subject to judicial notice.[8] Accordingly, we must disregard these documents, which provide the principal evidentiary support for several of Marks claims of error. (Truong v. Nguyen, supra, 156 Cal.App.4th at p. 882; Pulver v. Avco Financial Services, supra, 182 Cal.App.3d at p. 632.)

Moreover, an appellant who challenges the sufficiency of the evidence supporting the trial courts decision is required to demonstrate that there is no substantial evidence to support the challenged findings. [Citations.] A recitation of only [appellants] evidence is not the demonstration contemplated under the above rule. [Citation.] Accordingly, if, as [appellant] here contend[s], some particular issue of fact is not sustained, [he is] required to set forth in [his] brief all the material evidence on the point and not merely [his] own evidence. Unless this is done the error assigned is deemed to be waived. [Citations.] (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; accord, In re Marriage of Rothrock, supra, 159 Cal.App.4th at p. 230; Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 951; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Mark failed to set forth in his brief all of the material evidence supporting the trial courts decision with respect to any of the substantial evidence issues he raises on appeal.

Finally, rule 8.204(a)(1)(B) provides that each point in an appellate brief must be supported by argument and, if possible, by citation of authority. When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. . . . It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant . . . asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.] (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852, fn. omitted.) In this case, Mark cited authority, including several relevant Family Code sections and two cases, for general propositions concerning the standard of review, the presumption that property acquired during the marriage is community property, and the trial courts duty to divide the community property estate equally. But Mark did not cite any authority to support any of his specific claims that the trial court erred in characterizing, valuing or dividing particular pieces or categories of property.

Gail raised these issues in her respondents brief, and Mark acknowledged in his reply brief that he made some technical errors in citing cases and pointed to parts of the trial brief and MSC [brief] that cannot be considered part of the court record. But, instead of correcting these errors, Mark repeated themindeed, Marks reply brief is in large part a reiteration of his opening brief, including the portions that violated the rules of appellate procedure. While we are mindful that [Mark] is representing himself on appeal, his status as a party appearing in propria persona does not provide a basis for preferential consideration. A party proceeding in propria persona is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.] Indeed, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney. [Citation.] (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.) We therefore conclude that, except for the issue discussed in Part B, ante, Mark forfeited his right to appellate review of the issues he has raised, and we affirm the judgment on that basis.

D. No Error

Even if we were to consider the merits of Marks claims, we would conclude thatbased on the record before ushe has failed to demonstrate reversible error.

Credit Card Debt: Mark argues that the trial court failed to consider his credit card debt in dividing the community estate. Marks income and expense declaration and schedule of assets and debts reflect credit card debt of between $6,000 and $8,000. It appears, however, that Mark himself characterized that debt as his separate property when the trial court ordered the parties to delineate the disputed issues relating to community debt. Moreover, Mark has cited no evidence indicating that the debt was a community obligation, and he did not list his credit card debt as a community obligation in his written closing argument in the trial court.[9] Mark has failed to demonstrate that the trial court erred in failing to characterize his credit card debt as a community obligation.

The Parties Incomes/Attorney Fees: Mark argues, in effect, that the trial courts findings overstated his income and understated Gails income, and that the trial court therefore erred by finding that Mark was the superior income earner and ordering him to pay $10,000 toward Gails attorney fees.

In marital dissolution cases, the trial court has broad discretion to award attorney fees where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. ( 2032, subd. (a); see also In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314.) The goal of such awards is to enable each party, to the extent practical, to have sufficient financial resources to present the partys case adequately . . . . ( 2032, subd. (b); see Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251-252.) The fact that the party requesting fees has resources from which he or she could pay his or her own attorney fees is not a bar to an attorney fee award. ( 2032, subd. (b).) A disparity in the parties respective circumstances may itself demonstrate relative need even though the applicant admittedly has the funds to pay his or her fees. (Family Law, supra, 14:159, p. 14-49; see also In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167.) In assessing one partys relative need and the other partys ability to pay, the court may consider all evidence concerning the parties current incomes, assets, and abilities, including investment and income-producing properties. [Citation.] (In re Marriage of Drake, supra, 53 Cal.App.4th at p. 1167.)

In this case, Gail requested an award of $25,000 to help pay her attorney fees. The trial court found that Mark had a history of earning over $100,000 per year; Gail earned $75,000 per year and received additional gifts from her parents; and the parties enjoyed an upper middle class standard of living. Both parties had entered the marriage with separate real and personal property. The trial court found that Mark was the superior income earner and [was] in possession of sufficient separate property to pay a contributive share of [Gails] attorneys fees and costs.

The trial courts findings were supported by substantial evidence. There was substantial evidence that Mark had greater personal wealth than Gail. Mark was awarded as his separate property the house he owned prior to the marriage, located on Terrebonne Avenue in San Dimas. As of July 2004, Marks house had an appraised value of $950,000. In his schedule of assets and debts filed in January 2003, Mark reported the house was encumbered for $250,000. Mark has cited no evidence that the value of the house or the amount of the encumbrance changed in any material respect prior to entry of judgment. Gail, on the other hand, was awarded as her separate property the house she owned prior to the marriage, located on Via Arroyo in La Verne. Gail testified that the house was worth $530,000 and was encumbered for $270,000. There was thus evidence that Mark had more equity in his house than Gail had in hers.

There also was substantial evidence that Mark had greater earning capacity than Gail. Mark testified that, during the marriage, he had a higher monthly income than Gail. In March 2006, Mark testified that he formerly earned $50 per hour but was, at that time, earning only $30 per hour. However, a valuation by Wiebe & Associates (Wiebe) of Marks consulting business and cash flow in December 2004 indicated that all of Marks consulting contracts between 1998 and 2003 were at rates between $60 and $90 per hour.[10] Gail also testified that Marks hourly rate during the marriage was between $60 and $90 per hour. Based on a full time work schedule of 2000 hours per year, the trial court reasonably could conclude that Marks earning capacity was in the range of $120,000 to $180,000 per year. This was consistent with evidence that, for 2003, Marks consulting contracts generated gross income of over $157,000. In contrast, Gail was a second grade schoolteacher who earned approximately $75,000 per year in salary; in most years, she also received a substantial Christmas gift from her parents,[11]which the trial court did not include as income. Gail was not awarded postjudgment spousal support. She testified that, after she separated from Mark, her lifestyle had greatly decreased, whereas Mark continued to live a very extravagant lifestyle. Gail testified that she was having a hard time paying her bills and had to refinance her house in order to meet her obligations. Accordingly, there was substantial evidence that Mark had both greater wealth and a greater earning capacity than Gail, and that Mark could afford to contribute toward paying Gails attorney fees.

Mark asserts that Gails father, Richard Canzoneri, was paying Gails attorney fees. The record does not support that assertion. Both Gail and Mr. Canzoneri testified that Gails parents had loaned Gail $20,000 to pay attorney fees, that the loan was expected to be repaid, and that it had not yet been repaid. Mark has failed to demonstrate that the trial court abused its discretion in ordering him to contribute toward paying Gails attorney fees.

Charles Schwab IRA: Mark asserts that the trial court incorrectly valued his Charles Schwab IRA at $11,181.56 rather than zero because he cashed [it] in in March 2002, before the date of separation. However, there was sufficient evidence that Mark withdrew $11,181.56 from the account on August 26, 2004. The trial court found that Mark admitted to receiving $11,181.56 from the account, but failed to produce evidence to establish the disposition of those funds. The trial court did not abuse its discretion with respect to the IRA account.

Diamond Ring: Mark argues that Gails 2-carat diamond wedding ring was not a gift but an investment, and should have been characterized as community property rather than Gails separate property. Gail testified the ring was a gift for the couples third anniversary. The trial court found that the ring was a gift. That finding was supported by substantial evidenceGails testimony. The finding of a trial court that property is either separate or community in character is binding and conclusive on the appellate court if it is supported by sufficient evidence, or if it is based on conflicting evidence or upon evidence that is subject to different inferences; . . . [Citations.] [Citations.] (In re Marriage of Klug (2005)130 Cal.App.4th 1389, 1398.)

1998 Porsche 911: Mark argues that the trial court improperly characterized the proceeds of the sale of a 1998 Porsche 911 automobile as community property. The trial court heard conflicting testimony on the issue, and concluded that both parties had failed to produce sufficient evidence to prove their respective positions. Mark thus failed to carry his burden to establish that the sale proceeds were his separate property. (In re Marriage of Ettefagh, supra, 150 Cal.App.4th at p. 1585.)

1999 Mercedes E300: Mark contends the trial court erroneously assigned a value of zero to a 1999 Mercedes E300 automobile, rather than the cars Kelly Bluebook value of $39,400. The trial court heard conflicting evidence with respect to the parties respective separate property contributions toward purchasing and maintaining the vehicle, stating that the parties had participated in a series of complicated and confusing transactions with respect to the vehicle. We will not reweigh the evidence on appeal. The trial courts finding was supported by substantial evidence.

2000 Ford Mustang & 1998 Honda Civic: Mark argues the trial court mischaracterized and improperly valued these automobiles. The trial court found that the vehicles were purchased as gifts for Gails daughters with a combination of Gails separate property and funds provided by Gails parents. That finding was supported by substantial evidence.

1988 Mooney PFM: Mark argues the trial court erred in disposing of the sales proceeds of a Porsche Mooney aircraft and a related debt. The sales proceeds, however, were placed in trust and disbursed pursuant to court order, and were charged against Gails share of the community property estate. It appears that the debt issue relates to Marks claim for Epstein credits for expenses related to maintaining the aircraft. The trial court found, however, that Mark failed to carry his burden of proving that he was entitled to reimbursement. (See ante fn. 10.) We will not reweigh the evidence on appeal. Mark has failed to demonstrate that the trial courts decision was not supported by substantial evidence or that the trial court abused its discretion.

2000 Honda ST1100 Motorcycle: Mark argues the trial court erroneously valued a 2000 Honda motorcycle at $7,500 rather than $1,000. There was evidence, however, that Mark had possession of the motorcycle at the time of separation, that it was in good condition, and that it had a value of $7,500. Mark testified that he was in an accident after separation, and he admitted that he failed to maintain collision insurance on the motorcycle. The trial court found that Mark did not explain why he failed to maintain insurance or establish that the $1,000 trade-in value he received reflected the fair value of the motorcycle. The trial courts valuation was supported by substantial evidence.

Terrebonne Avenue Residence: Mark contends the trial court erred in awarding Gail Moore/Marsden[12]credit with respect to Marks separate property residence. Gail, however, presented both lay and expert testimony regarding the contributions to the value of home from both the community estate and Gails separate property. The trial court considered the evidence and legal arguments presented by both parties. The trial courts findings were supported by substantial evidence, and Mark has failed to demonstrate any legal error or abuse of discretion.

Via Arroyo Residence: Mark stipulated in the trial court that he was not seeking any interest in Gails house. He cannot assert a contrary position on appeal.

State Board of Equalization: Mark argues that the trial court erred in characterizing as his separate debt certain obligations owed to the State Board of Equalization arising from the purchase and sale of the Mooney aircraft. The trial court heard substantial conflicting testimony with respect to the Board obligations. The trial court concluded that it cannot find by a preponderance of the evidence that the liability, if any, is in fact a community obligation. This court will not reweigh the evidence, and Mark has failed to demonstrate any legal error or abuse of discretion with respect to this debt.

Mark Nine Systems Wells Fargo Account: Mark asserts the trial court overvalued a deposit account at Wells Fargo. There was substantial evidence, however, that the account properly was valued at $11,070.00. Mark has failed to demonstrate that his argument to the contrary has any basis in the trial record.

Other Mark Nine Systems Assets: Mark argues that the trial court improperly characterized certain computers and related equipment held in the name of his business, Mark Nine Systems, Inc. The judgment, however, does not specifically dispose of that property, and the trial court assigned the business to Mark. It appears that, rather than asserting error in the judgment, Mark is seeking, in effect, replevin of the computer equipment from Gail. If so, he must pursue that remedy in the trial court in the first instance, not in this court.

E. Sanctions

Gail filed a motion seeking an award of attorney fees and costs pursuant to Code of Civil Procedure section 907 and rule 8.276. Gail argues, in effect, that Marks appeal was frivolous, in whole or in part, and that Mark failed to follow applicable court rules in briefing and preparing the record on appeal.

Code of Civil Procedure section 907 provides that [w]hen it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just. California Rules of Court, rule 8.276(e)(1) allows the court to impose sanctions on a party or an attorney for the taking of a frivolous appeal or appealing solely to cause delay. An appeal is frivolous only when it is prosecuted for an improper motiveto harass the respondent or delay the effect of an adverse judgmentor when it indisputably has no meritwhen any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.] [Citation.] (In re Marriage of Gong and Kwong (2008) 163 Cal.App.4th 510, 516; see also In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) In addition, pursuant to rule 8.276(a)(4), this court has the authority to sanction a party for any . . . unreasonable violation of the appellate rules.

We have concluded that Marks contention that the trial court should have characterized, valued and divided the parties community property furnishings and appliances is well taken. Accordingly, Marks appeal was not entirely frivolous. Although Mark violated applicable court rules in presenting his appeal, we are cognizant that Mark is not an attorney and was acting in propria persona. (See Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98.) We have held that Mark forfeited his right to appeal the issues he raised due to those violations, and we award Gail her costs on appeal. We conclude that, at this point, the record does not warrant the imposition of monetary sanctions against Mark. We therefore deny Gails motion for sanctions.

DISPOSITION

The judgment is affirmed. Gail Stark-Leuzinger is to recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

ARMSTRONG, Acting P. J.

KRIEGLER, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] We refer to the parties by their first names not out of disrespect, but for ease of identification. (See In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn. 1.)

[2] All statutory references are to the Family Code, unless stated otherwise.

[3] Section 2550 provides in relevant part: Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall . . . divide the community estate of the parties equally.

[4] Notwithstanding the discussion regarding forfeiture in Part C, post, the reporters transcripts and appendix provided by Mark constitute an adequate record on this issue, and Mark presented sufficient argument and citation to authority with respect to this issue to avoid forfeiture. Accordingly, we address Marks contention on its merits.

[5] Mark asserts in his opening brief that the mediation was held on November 1, 2006, but that the matter was never settled. Although we have no reason to doubt Marks statement, the record is devoid of any indication that such a mediation occurred. The claimed existence of facts that are not supported by citations to pages in the appellate record, or not appropriately supported by citations, cannot be considered by this court. [Citations.] (Mueller v. County of Los Angeles(2009) 176 Cal.App.4th 809, 816, fn. 5; accord, Supervalu, Inc. v. Wexford Underwriting Mangagers, Inc. (2009) 175 Cal.App.4th 64, 79.)

[6] All rule references are to the California Rules of Court.

[7] We recognize that pursuant to rule 8.124(b)(3), the exhibits admitted into evidence are deemed to be part of the record regardless of whether copies are included in the appendix. As a practical matter, however, Marks failure to include the exhibits and other items in his appendix not only violated rule 8.124(b)(1)(B), but improperly shifted to Gail and to this court the burden and expense of providing a record that accurately reflects the trial court proceedings. (See Rules 8.124(b)(1)(B), 8.224.) An appellate court is not required to independently acquire the records of the trial court . . . to compile a complete record for appeal . . . . (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498-499.)

[8] That the documents might have been included on Marks pretrial exhibit list or attached to his pretrial brief does not establish that they were considered by the trial court. Mark makes no claim that the trial court improperly excluded these documents.

[9] It appears that some portion of Marks credit card debt may have been the subject of his request for Epstein credits (In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85) to reimburse him for postseparation expenses he incurred maintaining a community property asset. The trial court found that Mark failed to present sufficient evidence that he was entitled to Epstein credits.

[10] Wiebe reported and the evidence showed that Mark operated his business, Mark Nine Systems, Inc., as merely a conduit through which he directed his personal earnings and offset these earnings for tax purposes with expenses he believes are business related.

[11] Marks assertion that Gailed received $20,000 from her parents every year misstates the record. The evidence established that she received a gift of $10,000 most years, but received a gift of $20,000 in 2004.

[12]Moore/Marsden credits refer to the community property interest in a separate property residence acquired by one party prior to marriage, created by the communitys contribution to any increase in the value of the home during the marriage. (See In re Marriage of Moore (1980) 28 Cal.3d 366; In re Marriage of Marsden (1982) 130 Cal.App.3d 426; see generally Family Law, supra, 8:295, p. 8-75.)